Fixing Honduras: A Constitutional and Historical Rewrite

Three US law professor “specialists in comparative constitutional law,” deny the reality of the Honduran coup and the anti-democratic oppression on the ground in Honduras, advocating imaginary limits on military and executive power.

Law Professors Doing Public Relations for Honduras’ Post-Coup Corporate-Run State

Three law professor “specialists in comparative constitutional law,” Noah Feldman (Harvard), David Landau (Florida State), and Brian Sheppard (Seton Hall), achieve somersaults in logic in order to deny the reality on the ground in Honduras. Their piece appeared in the Los Angeles Times on June 7, 2011, entitled: “Fixing Honduras: The crisis that led to President Manuel Zelaya’s ouster underscores the importance of strengthening constitutional controls over both the military and the executive.”

Their first question is egregious: “Was there a coup d’etat in 2009?” That they could ask the question is telling. They assert that President Zelaya “violated Honduran law when he tried to hold a referendum asking voters whether they wanted to call a constituent assembly to rewrite the constitution.” Then they threw in the tired line: “…foes claimed the goal was to extend his stay in office.”

STORY: Democracy, Reconciliation, and Justice Returns to Honduras? Not Yet…

President Zelaya had not tried to change the constitution to implement re-election. He had not even tried to change the constitution, nor held a referendum. He was trying to take a non-binding public opinion poll called an encuesta. His real transgression was stated by RAJ in the blog Honduras Coup 2009:

There is a dispute about whether opinion polls could take place at all. The decisions by a lower court, which the Supreme Court refused to review, did tell the Zelaya administration not to do anything to ask citizen opinion, not even to think about anything of the kind. Whether that really was a decision whose violation could be prosecuted as a criminal matter (rather than an administrative matter) is something we will never know, because the actual encuesta was cut off by the coup d’etat. What is clear is that the poll on June 28 would not have been carried out with the support of the Armed Forces (illegal and grounds for impeachment), nor under the supervision of the National Election Tribunal (also illegal), and therefore was not the kind of process called for under Article 5 (the article coup apologists point to as reasoning for his removal) for referenda or plebiscites.

Constitutional Limits, If Only… The focus of the Times article relies on the quote: “Before the next crisis, (Honduras) needs stronger constitutional limits on both the military and the executive.”

Adrienne Pine, an anthropologist who teaches at American University, illustrates the unreality of these nebulous assertions of constitutional limits in her piece “Law Professors on Crack, Civilian Control over the Military, and more National Endowment for Democracy,” on Quotha.net. She posits the counterfactuality of civilian control over anything, “as if”:

1. In Honduras there were citizen control over any part of the government in the “democratic” sense implied, that would make this anything more than lip service;
2. There were a single reason to maintain a military in Honduras, other than to suppress free speech and opposition to neoliberal policies by harassing, shooting at, teargassing, disappearing, torturing and carrying out targeted assassinations of nurses, teachers, students, indigenas, campesinos and other Resistance members;
3. We had civilian control over the military in the United States! I don’t even have bloody representation here in the colony of DC, let alone any say whatsoever in the fact that 86% of federal resources is controlled by the DoD. When the valiant National Endowment for Democracy (NED) starts demanding civilian control over the military here, maybe I’ll start taking it seriously there.

NED financed the “free and fair” 2009 elections that all political parties boycotted except that of the winner (Porfirio “Pepe” Lobo). Elections unmonitored by international organizations, partly the basis of Honduras being left out of the Organization of American States, until the recent Cartagena Accords that let Zelaya back in the country.

The crowning blow of reality redefinement came when our specialist professors claim that:

 “The relative calm of the last two years in Honduras has brought with it the opportunity to engage in unpressured analysis of these issues. Reform is needed now because it would not be possible to make it happen under the pressures of a crisis. Honduras should seize the moment to make improvements that can help keep democracy safe in moments of crisis.”

Blip, away goes the oppression, murder, disappearances, and general sense of dictatorship in the service of multinational corporations that has befallen Honduras since mid-2009.

With President Zelaya back in Honduras, maybe we will see a new dialogue, where these theoretical reforms can begin to have some meaning. But listening to our “Truth Commission” specialists, we are not quite there yet.

As an aside from an ignominious history, an alternative view of Dr. Feldman’s qualifications to rewrite the Iraqi constitution with telling criticism from the late Palestinian-American literary theorist Edward Said:

Kareem Fahim: “Have a Nice Country: Noah Feldman helped write the Iraqi constitution. Now he gets to watch it sink or swim.” The Village Voice, June 22, 2004.

Updated 15 February 2019